Whiting v. Gaylord

• Decision Date: 22 June 1895
• Citation: 34 A. 85,66 Conn. 337
• Court: Connecticut Supreme Court
• Parties: WHITING v. GAYLORD.

34 A. 85

66 Conn. 337

WHITING

v. GAYLORD.

Supreme Court of Errors of Connecticut.

June 22, 1895.

Appeal from court of common pleas, Pairfield county; Curtis, Judge.

Action by Fanny S. Whiting against Edward L. Gaylord. There was a judgment for plaintiff, and both parties appeal. Error on defendant's appeal. No error on plaintiff's appeal.

This action was brought to recover damages for injuries to the building and to the health of plaintiff, caused by the removal by defendant of a wall in which plaintiff claimed an easement for the support of the joists of her building. It appeared that plaintiff and defendant were the owners of a double dwelling, and claimed under the same grantor. The division wall was constructed merely of planks, lath, and plaster, and was only 2 1/2 inches thick. Some of the joists of the building ran through it, and were supported by partition walls about 6 feet therefrom. The deed to plaintiff, who purchased her half of the house before the purchase by defendant, bounded her land by the "center of the division wall of said double house." Defendant, in rebuilding, cut off the joists, which were supported by the partition wall on his land, about a foot from the division wall, and supported them by props until they were let into the new brick wall built by him on his own premises. The division wall was not disturbed. For the injuries to the walls of plaintiff's house caused by the removal of the partition wall supporting the joists, the trial court held defendant liable as an insurer, though he was not negligent, but denied a recovery for injuries to plaintiff's health, caused by the cold, dampness, and the jarring of her building during the progress of the work. The division wall was so constructed as not to fill the spaces between the joists which passed through it.

J. C. Chamberlain and Nathaniel W. Bishop, for plaintiff.

Curtis Thompson, for defendant.

ANDREWS, C. J. The division wall, one half of which was conveyed to the plaintiff by her deed, and the other half of which was conveyed to the defendant by his deed, has not been injured. It remains as it was before the defendant rebuilt. No damages were claimed, and none were awarded, for anything done to it. The defendant did certain acts on his own land, lawful in themselves, and without negligence. In doing such acts in that way, some damage was unavoidably done to the plaintiff. The trial court held that the defendant was liable to the plaintiff for the damages so caused, as an insurer. The defendant insists that the trial court erred in so holding. It is to be observed that the finding does not, in terms, set out any relations existing between the plaintiff and the defendant, by reason of which he is subjected to the liabilities of an insurer, and she entitled to the rights of one insured. If there is such a relation, it is to be gathered from the facts of the case. It is found that the method of constructing this double dwelling house would have been disclosed by an inspection, if the defendant had made one before he purchased. This finding can only mean that the method by which these joists were supported was not open, apparent, and visible; and that such means of support was not necessary to the maintenance of the plaintiff's house is shown by the fact that another means was readily substituted by the defendant.

The argument in this court, in behalf of the plaintiff, proceeds on the theory that the plaintiff had an easement of support for the east end of the joists, which the defendant cut off, upon the defendant's partition, although that partition was six feet from the division wall of the house,—an easement of support precisely like, and to the same extent as, the easement for support which each of the owners of a strict party wall has in such a party wall,—and that the defendant is liable to the plaintiff, as an insurer, for all the damages occasioned to her by reason of his interference with such support. It has been held, in some cases, that, where one owner of a party wall makes any change in it for his own benefit, and when not required for the purposes of repair, he is absolutely responsible for all damage which is thereby occasioned to the other owner. Brooks v. Curtis, 50 N. Y. 645; Schile v. Brokhaus, 80 N. Y. 614; Eno v. Del Vecchio, 6 Duer, 17. It is, perhaps, open to some doubt whether the rule of liability expressed in these cases would be applied to the same extent in this state. We have no occasion now to discuss that question. It would not be applied, here or elsewhere, except in a case where a strict party wall was shown to exist. In the absence of some statute, a strict party wall can exist only by prescription, or by contract, express or implied. Gilmore v. Driscoll, 122 Mass. 207; Quinn v. Morse, 130 Mass. 317; List v. Hornbrook, 2 W. Va. 340; Bonomi v. Backhouse, El., Bl. & El. 622, 9 H. L. Cas. 503. It is in these cases pointed out that the right to the support of land, lateral and subjacent, in the means by which it is acquired, is entirely different from the right to have a building supported upon the land of another. The former is in the nature of a right of property, analogous to the flow of a stream of water, or of air, while the latter can only be founded upon a prescription, or on a grant, express or implied. Wyatt v. Harrison, 3 Barn. & Adol. 871; Partridge v. Scott. 3 Mees. & W. 220.

But a right by prescription in the plaintiff to have these joists supported as on a party wall does not seem to be shown, nor is such right shown by any easement of less technical character. To establish an easement by prescription, it is absolutely essential that the use be adverse. It must be such as to give a right of action in favor of the party against whom it has been exercised. Parker v. Hotchkiss, 25 Conn. 321; Gilmore v. Driscoll, 122 Mass. 207; Sullivan v. Zeiner, 98 Cal. 346, 33 Pac. 209; Mitchell v. Mayor, etc., of Rome, 49 Ga. 25. While this house was owned as one house by the common grantor of the parties, there was a unity of possession in the now dominant and servient estates, and the enjoyment of the quasi easement by each part of the house was in no sense adverse, and that period cannot be regarded as aiding to confer any right upon the plaintiff to its further enjoyment. Hickox v. Parmelee, 21 Conn. 98; Manning v. Smith, 6 Conn. 289; Tucker v. Jewett, 11 Conn. 322; Johnson v. Jordan, 2 Metc. (Mass.) 234; Hieatt v. Morris, 10 Ohio St. 523; Tunstall v. Christian, 80 Va. 1; Stanford v. Lyon, 22 N. J. Eq. 33. Since she became the owner, sufficient time has not elapsed to raise a prescription.

There is no evidence—indeed, there is no claim—of an express contract, between this plaintiff and defendant, by which a party wall or any easement of support was established, or of any such contract by either of them with their grantor. So far as the deeds appear, the plaintiff took nothing but the land granted to her,—that is, the land on the west side of, and up to the center line of, the division wall,—while the defendant took all the land on the east side of that center line. Neither took any right in the land of the other. The plaintiff's title to the easement of support must therefore depend entirely on an implied grant. When a right or privilege is claimed as being annexed to one's land, to use the adjacent land of another for a special purpose, whether arising from prescription (a prescription supposes a lost grant) or from an implied grant or reservation, the existence of the alleged easement will, in general, depend upon an affirmative answer to the inquiry, is it open, visible, continuous, and necessary? The purpose of the inquiry is to ascertain the intent of the grant. It is a matter of contract, and must depend upon the construction of the conveyance. And so the real question is, what construction will the law put upon a conveyance where the intention of the parties in this respect is not expressed in terms?

The plaintiff contends that, as an inspection of the premises would have shown how the original house was constructed, it must be implied that she took her part of the house with the easement of support which she now claims, and that the defendant took his part of the house subject to such easement in her favor. The finding does not indicate what is intended by the expression "an inspection." An inspection may be very general, or it may be very minute. It may be made by one having no skill, or it may be made by one having great skill. The claim of the plaintiff's counsel indicates that they mean a careful inspection by a person who is reasonably familiar with the premises. The leading case cited by the plaintiff, and, indeed, the only one we have found which goes far enough to fully support her claims, is Pyer v. Carter, 1 Hurl. & N. 916. In that case the owner of a single house converted it into two houses. While he was the sole owner, he had constructed a drain under both of them. He sold one of them to the defendant, and afterwards the other one to the plaintiff. The defendant stopped the drain, so that the water from the plaintiff's house could not flow off. It was not proved that, at the time of the purchase, the defendant knew of the position of the drain. Judgment was given for the plaintiff. In deciding the case, the court of exchequer said the defendant took his part of the house "such as it is," subject to all the apparent signs of servitude which existed, and that by "'apparent signs' must be understood not only those which must necessarily be seen, but those which may be seen or known on a careful inspection by a person ordinarily conversant with the subject." The case was decided in 1857, but it has since been repeatedly and distinctly disapproved in England.

In Suffield v. Brown, 4 De Gex, J. & S. 185, decided in 1864, in the court of chancery, Lord Chancellor Westbury, in respect to Pyer v. Carter, after stating the case, said: "It was held that the second...